Citation Nr: 9912027
Decision Date: 04/30/99 Archive Date: 05/06/99
DOCKET NO. 98-04 824A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to a disability rating in excess of 40
percent for degenerative joint disease of the lumbar spine,
with anterior lipping at L4-5, narrowing of disc space at L5-
S1, and lumbarization of S1, on appeal from the initial grant
of service connection.
2. Entitlement to a total rating based on individual
unemployability due to service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1967 to
February 1970 and from April to May 1981.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana, which denied entitlement to a total
rating based on individual unemployability due to service-
connected disability.
Entitlement to TDIU was the only issue certified to the Board
on appeal. For the reasons discussed below, the Board finds
that the veteran has filed a notice of disagreement with the
original assignment of a 40 percent disability rating for his
back condition in the May 1997 rating decision, thereby
initiating an appeal. Therefore, the issues on appeal have
been recharacterized as shown above.
REMAND
Additional evidentiary development and due process are needed
prior to further disposition of the veteran's claims.
Due process
First, the Board must consider all documents submitted prior
to its decision and review all issues reasonably raised from
a liberal reading of these documents. Suttmann v. Brown, 5
Vet. App. 127, 132 (1993) (citations omitted). Where such
review reasonably reveals that the claimant is seeking a
particular benefit, the Board is required to adjudicate the
issue or, if appropriate, remand the issue to the RO for
development and adjudication; however, the Board may not
ignore an issue so raised. Id.
In May 1992, the veteran filed claims for service connection
for a back condition and for nonservice-connected pension
benefits. A November 1992 rating decision denied these
claims, and the veteran perfected his appeal to the Board.
In May 1994, the Board remanded these claims for additional
development. While this case was in remand status, a May
1997 rating decision granted service connection for
degenerative joint disease of the lumbar spine, with anterior
lipping at L4-5, narrowing of disc space at L5-S1, and
lumbarization of S1, with assignment of a 40 percent
disability rating. That decision also granted nonservice-
connected pension benefits based on the veteran's inability
to follow a substantially gainful occupation due to all of
his disabilities.
In June 1997, the veteran filed a claim for TDIU. After that
claim was denied in a November 1997 rating decision, the
veteran filed a notice of disagreement stating, in part, that
he "fail [sic] to understand the rating board's decision
that [he] be rated at only 40%." In his substantive appeal
for the TDIU claim, the veteran stated, in part, that he
maintained that he was not 40 percent disabled, but 100
percent. Either of these documents, filed at the RO, would
be timely as a notice of disagreement with the May 1997
rating decision that originally assigned the 40 percent
disability rating for the veteran's back condition.
It is proper to remand this claim because the veteran has not
been provided a statement of the case (SOC) on this issue.
See Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995);
Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VA O.G.C.
Prec. Op. No. 16-92 (July 24, 1992). However, this issue
will be returned to the Board after issuance of the SOC only
if it is perfected by the filing of a timely substantive
appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997);
Archbold, 9 Vet. App. at 130.
Second, as indicated above, the veteran disagreed with the
original disability rating assigned for his back condition.
The United States Court of Appeals for Veterans Claims
(formerly known as the United States Court of Veterans
Appeals) (Court) recently held that there is a distinction
between a claim based on disagreement with the original
rating awarded and a claim for an increased rating.
Fenderson v. West, 12 Vet. App. 119 (1999). The distinction
may be important in determining the evidence that can be used
to decide whether the original rating on appeal was erroneous
and in determining whether the veteran has been provided an
appropriate SOC. Id. at 126 and 132. With an initial
rating, the RO can assign separate disability ratings for
separate periods of time based on the facts found. Id. at
126. With an increased rating claim, "the present level of
disability is of primary importance." Francisco v. Brown, 7
Vet. App. 55, 58 (1994). The distinction between
disagreement with the original rating awarded and a claim for
an increased rating is important in terms of VA adjudicative
actions. Fenderson, 12 Vet. App. at 132.
The RO should issue a SOC to the veteran that correctly
identifies the issue on appeal. In accordance with
Fenderson, the RO should review the evidence of record at the
time of the May 1997 rating decision that was considered in
assigning the original disability rating for the veteran's
back condition, then consider all the evidence of record to
determine whether the facts showed that the veteran was
entitled to a higher disability rating for this condition at
any period of time since his original claim.
Evidentiary development
It is appropriate to provide the veteran additional VA
examinations to evaluate the effect of his service-connected
back condition on his employability. Where the degree of
impairment caused by a disability must be evaluated, the
examination must provide a detailed assessment of the
veteran's disabilities and their effect upon his ordinary
activity, including the effect upon employment. See 38
C.F.R. §§ 4.1, 4.2, and 4.10 (1998); see also Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). Although the veteran
was provided VA examinations in 1997, the examiners did not
render opinions as to the effect of the veteran's service-
connected back disorder on his employability.
Furthermore, the Board does not have sufficiently clear
medical evidence on which to base a decision. See Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991); Santiago v. Brown, 5
Vet. App. 288, 292 (1993). In 1989, Charles Fontenot, M.D.,
indicated that the veteran was disabled and unable to work
due to degenerative joint disease of the lumbar spine. Upon
VA examination in 1995, R. Dale Bernauer, M.D., concluded
that the veteran's complaints were exaggerated, and he only
had 10 percent permanent disability for his back and should
be able to work other than avoiding lifting more than 50
pounds or repetitive stooping, bending, or squatting. These
conflicting opinions regarding the effect of the veteran's
back condition on his employability must be reconciled.
Attempts to obtain some of the veteran's treatment records
have been unsuccessful. A request to Dr. Fontenot for
treatment on the date indicated by the veteran yielded a
response from the doctor that the veteran was last seen
August 26, 1980. No treatment records were provided. Dr.
Thompson responded by giving the name and address of the
doctor who might have the veteran's treatment records. While
the RO wrote to the other doctor, it did not request Dr.
Thompson's treatment records for the veteran that were in the
possession of the other doctor. No response was received.
It is the veteran's responsibility to present evidence in
support of his claim. If the RO has not been successful in
obtaining referenced private treatment records, the veteran
must be told of his responsibility and offered the
opportunity to obtain and present these records if he wants
them to be considered in connection with his claim. See
38 C.F.R. § 3.159(c).
The Court has reiterated that it is the Board's
responsibility to make findings based on the evidence of
record and not to supply missing facts. In the case of a
claim for TDIU, the Board may not reject that claim without
producing evidence, as distinguished from mere conjecture,
that the veteran can perform work that would produce
sufficient income to be other than marginal. See Friscia v.
Brown, 7 Vet. App. 294 (1994), citing Beaty v. Brown, 6 Vet.
App. 532, 537 (1994). Furthermore, VA must determine if
there are circumstances, apart from nonservice-connected
conditions and advancing age, that would justify a total
disability rating based on unemployability by placing this
particular veteran in a different position than other
veterans with the same combined disability evaluation. See
Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In light of
the above, the Board finds it is appropriate to remand the
veteran's claim for further evidentiary development.
Accordingly, while the Board regrets the delay, the case is
REMANDED for the following:
1. Ask the veteran to identify the names
and complete addresses of any medical
providers who have treated him for his
service-connected back condition since
1996. After securing any necessary
release, request records of any treatment
identified by the veteran that are not
already of record. Request again the
copies of actual treatment records of the
veteran from Dr. Fontenot and Dr.
Thompson's treatment records that are
located at the office of Linus Carroll,
M.D. Associate all records received with
the claims file. If private treatment is
reported and those records are not
obtained, tell the veteran and his
representative, so the veteran will have
an opportunity to obtain and submit those
records himself, in keeping with his
responsibility to submit evidence in
support of his claim under 38 C.F.R.
§ 3.159(c) (1998).
2. Ask the veteran to submit an up-to-
date employment statement.
3. Schedule the veteran for appropriate
VA physical examinations to evaluate his
back condition. It is very important
that the examiner(s) be provided an
opportunity to review the claims folder
and a copy of this remand prior to the
examination(s). The examiner(s) should
indicate in the report(s) that the claims
file was reviewed.
The veteran's service-connected back
condition should be evaluated for the
specific purpose of assessing the
relative degree of industrial impairment,
in light of the veteran's recorded
medical, educational, and vocational
history. The examiner must express an
opinion as to the degree of interference
with ordinary activities, including the
ability to obtain and maintain gainful
employment, caused solely by the
veteran's service-connected back
condition, as distinguished from any
nonservice-connected disorders present,
without regard to the age of the veteran.
All necessary tests and studies should be
conducted in order to ascertain the
severity of the veteran's service-
connected back condition. The
examination should include range of
motion testing, and all ranges of motion
should be reported in degrees. It is
requested that the examiner indicate what
is normal range of motion for the lumbar
spine. All functional limitations are to
be identified, including whether there is
any pain, weakened movement, excess
fatigability or incoordination on
movement of the back. The examiner
should discuss whether there is likely to
be additional range of motion loss due to
any of the following: (1) pain on use,
including during flare-ups; (2) weakened
movement; (3) excess fatigability; or (4)
incoordination. The examiner is asked to
describe whether pain significantly
limits functional ability during flare-
ups or when the low back is used
repeatedly.
If there is no limitation of motion or
function, or no objective indications of
pain, such facts must be noted in the
report. The examiner should elicit
information as to precipitating and
aggravating factors (i.e., movement or
activity), and the effectiveness of any
pain medication or other treatment for
relief of pain. The examiner should
discuss the effect the veteran's service-
connected low back disability has upon
his daily activities. See DeLuca v.
Brown, 8 Vet. App. 202 (1995).
Prior to rendering an opinion regarding
the veteran's employability, the examiner
should review (1) reports from VA
examinations conducted between 1992 and
1997, with particular attention to the
opinion of Dr. Bernauer in January 1995
regarding the veteran's employability,
and (2) the statement by Dr. Fontenot in
August 1989 regarding the veteran's
employability. In rendering an opinion
regarding the veteran's ability to obtain
and maintain gainful employment, based
solely on his service-connected back
condition, the examiner should attempt to
reconcile these conflicting opinions.
The examiner must provide a complete
rationale for all conclusions and
opinions.
4. Following completion of the above,
review the claims folder and ensure that
the examination report includes fully
detailed descriptions of all opinions
requested. If it does not, it must be
returned to the examiner for corrective
action. 38 C.F.R. § 4.2 (1998).
5. After completion of the above
evidentiary development, readjudicate the
veteran's claim for a total rating based
on individual unemployability, giving
consideration to all evidence of record.
If the benefit sought on appeal remains
denied, provide the veteran and his
representative a supplemental statement
of the case, and allow an appropriate
period for response.
6. Provide the veteran and his
representative a statement of the case as
to the issue of entitlement to a
disability rating in excess of 40 percent
for degenerative joint disease of the
lumbar spine, with anterior lipping at
L4-5, narrowing of disc space at L5-S1,
and lumbarization of S1. Review the
evidence of record at the time of the May
1997 rating decision that was considered
in assigning the original disability
rating for this condition, then consider
all the evidence of record to determine
whether the facts showed that the veteran
was entitled to a higher disability
rating for this condition at any period
of time since his original claim. See
Fenderson v. West, 12 Vet. App. 119
(1999). The SOC must correctly identify
the issue as on appeal from the initial
grant of service connection. Notify the
veteran that, if this issue is not
resolved to his satisfaction, he must
file a timely and adequate substantive
appeal, and notify him of the time limit
within which he must do so, in order to
perfect an appeal of this issue to the
Board. See 38 C.F.R. §§ 20.200, 20.202,
and 20.302(b) (1998). Allow an
appropriate period for response.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is so informed; however, he is free to submit
additional evidence or argument to the RO while this case is
in remand status. Booth v. Brown, 8 Vet. App. 109 (1995).
The purpose of this REMAND is to accord due process and
obtain additional information. No inference should be drawn
regarding the final disposition of these claims as a result
of this action.
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board of Veterans' Appeals or by the United States Court
of Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (Historical and Statutory Notes) (West Supp. 1998).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).